Flexing Our Mussels – People Over Wind and others vs An Bord Pleanala

Flex your MusselsAmandla Awethu!

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This was the cry that used to begin all public (and clandestine) meetings in South Africa during the dark days and the struggle against the apartheid regime. Pronounced “aah-mun-dluh  are-where-too” it means “Power to the People” and was used as a cry of hope when things were particularly bad and the struggle against a powerful foe seemed to be never-ending and incapable of being won, but also as a cry of celebration when victories, however small, were achieved and there was a glimmer of what might be.

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I sang these words out when I read about the successful leave to appeal achieved by People Over Wind. It was testament to the struggles of so many good folk fighting against a morally corrupt government and its big-business allies.

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In a previous blog (RTS & Ors -v- An Bord Pleanála [2015] IEHC 18 – lessons learned) which was written against a background of a devastated community after losing their review against the decision of the ABP to grant planning permission for a an industrial wind site, I tried to explain the decision of the review court to one member of that community who had written me a heartfelt letter. It was a difficult blog to write and I am glad that the story has not ended there, because it was a story of decent people trying to preserve the beautiful country that we live in.

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It is also the story about the Nore Freshwater Pearl Mussel.
PearlMussel_

This mussel (Margaritifera durrovensis) is not known to occur anywhere else in the world. The species name, durrovensis, comes from Durrow in County Laois. The Nore mussel is only found in the hard (limestone) waters of the River Nore. There are about 500 individual adult Nore pearl mussels left alive in the world today and these all live in a short stretch of river between Abbeyleix and Ballyragget (thanks to Mieke Muyllaert, Ecologist, for that information).

As wind turbines contaminate ground water, and the construction of industrial wind farms often produce harmful sediments which run into rivers, the building of a massive wind farm in the vicinity of the oyster beds poses a lethal threat to the mussel’s survival.

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If you have read my previous blogs you will remember that the terms “to seek leave” is the legal method of asking for permission, usually to go from a lower court to a higher court.

If you want to appeal the merits of a decision, you need leave to appeal; and if you want to challenge the way a court or tribunal went about things, you need leave to review.

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The decision of the High Court needed to be challenged, and on that basis People Over Wind (POW) and the Environmental Action Alliance Ireland applied for Leave to Appeal. For the purposes of this blog I will concentrate on the arguments put forward by POW.

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The Law
Appealing a review of a planning decision is a tough business. The hurdles are high and brutal. In order to get leave to appeal a planning review, Section 50 of the Planning and Development Act of 2000 (PDA2000) says that in order to get leave to appeal, the applicant for that leave has to show that:

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1. The points of law which are proposed are of exceptional public importance and
2. That it is desirable in the public interests that an appeal should be taken to the Court of Appeal (which is the new court above the High Court and below the Supreme Court).

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This is what the applicant had to do in order to convince Judge Haughton, who was the judge that ruled against RTS and the others in their judicial review application.

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As previously mentioned, the bar is very high. In Glancre Teoranta v. An Bord Pleanala and Mayo County Council [2006] IEHC 250 the High Court held that:

“lt is clear that the statutory regime which has been devised by the legislature indicates an interest to ensure that the planning process is not to be hampered by a completely unrestricted access to the court which may cause harmful delays. I am satisfied that it is a restriction to be lifted only in exceptional cases.”

In other words nothing must be allowed to stand in the way of “progress”.

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Against all these odds, the applicants stuck to their guns and argued their case and would you believe it – they won!

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The applicants argued that proper consideration had not been given to their arguments relating to environmental impact on the Nore Freshwater Pearl Mussel (NFPM) and the requirements of the Habitats Directive regarding the conservation objective of restoration for a species (the NFPM) and its habitat; the best scientific evidence in that regard; and finally regarding the question of the adequacy of mitigation measures.

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The applicant argued that the unfavourable conservation status of the habitat and species central to this case was a novel aspect not previously considered by the Irish courts. Judge Haughton agreed that his interpretation of Article 6(3) of the Habitats Directive was at odds with judgments of the European Court. He held that the Habitats Directive was so fundamentally important to our planning law and that it was accordingly of sufficient public importance that the Court of Appeal give a definitive ruling on the meaning and implementation of Article 6(3). Essentially the debate over Article 6(3) is whether it imposes an obligation on the authorities to take positive steps to enhance/improve a protected habitat or merely to preserve the status quo, irrespective of the condition of that habitat. That is the question that the Court of Appeal will need to answer.

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The learned judge agreed that the law was uncertain over the interpretation and implementation of Article 6(3):

“In my view, it could be argued that my conclusion on restoration is at odds with the decision in Sweetman, and an incorrect interpretation or application of Article 6(3). The decision on this question also has a knock-on effect in respect of the evidence that must be presented to a competent authority for its consideration and ‘appropriate assessment’. I accept that my decision may give rise to uncertainty amongst environmental and other experts involved in the preparation and presentation of Natura Impact Statements (“NIS”) in respect of other planning applications and the nature of the ‘best scientific evidence’ that must be adduced and considered,…”.

“The restoration of habitats or species that are damaged/endangered must be recognised as an important part of this regime, and the question of the extent to which planning authorities must have regard to restoration as a conservation objective when undertaking appropriate assessments is, I am satisfied, one of exceptional public importance, as this concerns the preservation of our natural heritage.”

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The respondents were wailing and gnashing their teeth and bemoaning the fact that it was critically important for the country that they get their wind farm up and running as soon as possible and that this appeal would delay their plans to do that. The judge was cutting in his reply:

“The force of Coillte’s argument is somewhat undermined by the fact that the proposed windfarm development is a commercial development. Ultimately it is primarily intended to produce profit for Coilte. The fact that it may contribute to Ireland meeting its renewable energy targets is not necessarily proven, but even if that is assumed, the primary objective is that of a successful commercial enterprise and the public benefit to the State would seem to be secondary.”

Ouch! Read the judge’s lips ABP – money is never more important than people (or mussels).

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The applicants were also successful in their two other arguments, namely that the Court of Appeal will also be asked to decide what was the extent of the duty of the ABP to “to seek or procure the best scientific evidence in carrying out an appropriate assessment”, and thirdly, the law relating to the question of “mitigation measures arising from adverse affects identified on environmental impact assessment.”

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These are all important questions of exceptional public importance which will now be answered by the Court of Appeal. Whilst questions two and three are important, it was mussel power that carried the day!

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Well done lads. This was an important battle to win. Now go on and win the war. Amandla Awethu!

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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2 Responses to Flexing Our Mussels – People Over Wind and others vs An Bord Pleanala

  1. Pat Swords says:

    While the European Court of Justice has in the last while sent out strong signals in respect of the importance of the Habitat’s Directive, this week a very strong signal went out also in respect of the Water Framework Directive:

    http://curia.europa.eu/jcms/upload/docs/application/pdf/2015-07/cp150074en.pdf

    To me this has to be of huge significance, as while not every wind farm development, such as the above, has a direct connection to the Habitat’s legislation, the construction of these massive concrete developments on upland soils, particular peat, is causing major problems. This has for instance led to huge controversy in respect of the Whitlee wind farm development outside of Glasgow, which is connected to the adverse drinking water quality (contamination) experienced in the surrounding area, which draws its supplies from the hills where the turbines are located.

    It’s not as if this problem hasn’t been identified here as well:

    https://www.epa.ie/pubs/reports/research/land/STRIVE_75_web_SC.pdf

    See page Xi for starters:

    Disturbances in the form of industrial and domestic peat extraction, private afforestation, overgrazing, wind farms and recreational activities have had and are having major negative impacts on the hydrology and ecology of these habitats. Natural peatlands, which are hydrologically and ecologically intact, have become rare and are being further threatened. The biggest threat to peatlands in the 21st century is likely to be climate change and its associated policies, e.g. wind farms. Rigorous examination and guidance for their full impact assessment (including a new technique developed in this project to test peat strength) are urgently required.

    So we know only too well here in Ireland that construction on peat uplands damages downstream water quality, and we are not limited to the Derrybrien incident in this regard. A search of various State agency documentation, such as the above, will demonstrate that. However, our State administration is in denial about it, as they effectively adopted a national renewable programme without any Strategic Environmental Assessment or indeed any form of environmental impact assessment or public participation at all. The decision makers for planning have been getting around this by approving developments based on nebulous policies. However, things are starting to catch up with them now, such as failing to address the impact of the Natura legislation.

    At the same time we have a good system of mapping our surface waters for the Water Framework Directive and establishing the required River Basin Management Plans (RBMPs):

    http://www.wfdireland.ie/

    It would be worth people’s while to go in and read those river basin management plans for their areas, as not only do they have legal effect, but this has been strengthened by this week’s ruling in the ECJ. For instance some details for the Eastern Region:

    http://www.wfdireland.ie/docs/1_River%20Basin%20Management%20Plans%202009%20-%202015/ERBD%20RBMP%202010/Programmes%20of%20Measures.pdf

    One can see clear signals:

    The Planning and Development Bill 2010, due to be enacted in the middle of this year, includes important new provisions in support of the Water Framework Directive. Firstly, the Bill includes a new mandatory objective requiring local authorities to integrate water management with planning policies and objectives in the preparation of their development plan. It specifically requires local authorities to ensure that the development plan supports the promotion of compliance with environmental standards and objectives established under both the Surface Waters and Groundwater Regulations. In order to ensure that both development planning and management are fully compliant with Water Framework Directive objectives, the Department of the Environment, Heritage and Local Government will issue Section 28 guidance to planning authorities on the new Planning Bill and its relationship with the implementation of the RBMPs, after enactment and not later than 2011.

    Finally as Neil has pointed out, well done to the above; they stuck to their guns, but they also got stuck into the detail. This is something that the developers and their allies in the State apparatus didn’t expect. There are more battles to be won in this manner!

  2. For purposes of clarity, this is the draft of Haughton J.’s proposed referral to the Court of Appeal:

    “[DRAFT OF HAUGHTON J. 19.06.15 SUBJECT TO FINAL APPROVAL]

    POINTS OF LAW CERTIFIED FOR APPEAL

    I HEREBY GRANT LEAVE TO THE FIRST NAMED APPLICANT PURSUANT TO S.50A(7) OF THE PLANNING AND DEVELOPMENT ACT, 2000 AS AMENDED TO APPEAL FROM THE JUDGMENT OF THE COURT HEREIN DELIVERED ON 1ST MAY, 2015 LIMITED TO THE DECISION ON ‘APPROPRIATE ASSESSMENT’ IN RESPECT OF THE FOLLOWING POINTS OF LAW WHICH I CERTIFY TO BE OF EXCEPTIONAL PUBLIC IMPORTANCE AND IN RESPECT OF WHICH IT IS DESIREABLE IN THE PUBLIC INTEREST THAT AN APPEAL SHOULD BE TAKEN TO THE COURT OF APPEAL:-

    1. RESTORATION

    Do Part XAB of the Planning and Development Act, 2000 (as amended) and/or Article 6(3) of the Habitats Directive impose an obligation on An Bord Pleanála in conducting an appropriate assessment to ensure that the proposed development would not adversely affect a National Parks and Wildlife Service objective of restoration , from unfavourable to favourable conservation status, of a protected habitat and species in a candidate Special Area of Conservation situated outside the proposed development site?

    2. BEST SCIENTIFIC EVIDENCE

    (A) What obligation, if any, is on An Bord Pleanála, to seek or procure the best scientific evidence in carrying out an appropriate assessment?
    (B) In light of the scientific evidence that was before An Bord Pleanála with regard to the Nore Freshwater Pearl Mussel, in carrying out its appropriate assessment was An Bord Pleanála entitled to regard this as the best scientific evidence for the purposes of deciding the appeal?
    (C) In reviewing the decision of An Bord Pleanála in respect of appropriate assessment was the Court constrained only to consider matters that were before An Bord Pleanála or was it entitled or obliged to have regard to the new or additional evidence in the affidavit of Dr. Evelyn Moorkens sworn on 23rd January, 2015 with regard to the Nore Freshwater Pearl Mussel?
    (D) If so, does this evidence demonstrate a lacuna in the best scientific evidence put before An Bord Pleanála such that its decision should be quashed or remitted for further consideration?

    3. MITIGATION MEASURES

    Where a proposed development is likely to adversely affect the integrity of a European Site but such affect may be avoided by mitigation measures to what extent, if at all, is it lawful for the detail of such measures to be left over by An Bord Pleanála for post consent agreement between the developer and named authorities?”

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